by Elena Zoniadis, Managing Attorney

In 2006, the New Jersey Legislature passed the Advance Directives for Mental Health Care Act. N.J.S.A. § 26:2H-102, et seq.Commonly referred to as “Psychiatric Advance Directives” or “PADs,” such directives permit an individual to detail what health care directives should apply if their decision-making capacity is compromised due to “serious illness, injury, or permanent loss of mental capacity.” N.J.S.A. § 26:2H-103(b). Therefore, a PAD is a “springing” legal right, which means that it takes effect at some future time upon some future occurrence.

The benefits of a PAD include self-determination and the avoidance of judicial involvement. Further, PADs allow a representative to make decisions when a guardianship order would be impracticable or inappropriate, as in the case of an episodic condition such as a mood disorder.

The U.S. Supreme Court has held that clear and convincing evidence of a person’s treatment preferences is required in the event of incompetency, and that due process prohibits the state from accepting the substituted judgment of family members absent substantial proof that their decisions reflect those wishes. Cruzan v. Missouri Dep’t of Health, 497 U.S. 261, 271 (1990). The PAD laws follow this legal trend towards self-determination and contain multiple protections. These include: how a “responsible mental health care professional shall determine” lack of capacity (N.J.S.A. § 26:2H-109(a)); what directives may be included (N.J.S.A. § 26:2H-107); instruction when there is no designated representative or if such representative is unable to serve (N.J.S.A. § 26:2H-113); and recognition of PADs properly executed in other jurisdictions (N.J.S.A. § 26:2H-123).

Disability Rights NJ has prepared materials that explain who a PAD might benefit, the scope of a representative, and what decision-making authorizations or restrictions can be included. In addition, we have worked with the Mental Health Association of New Jersey to create PAD templates (with instructions in English and Spanish). The New Jersey Department of Human Services, Division of Mental Health and Addiction Services has contracted with the U.S. Living Will Registry to create a secure centralized PAD registry. Our website also contains information on registering a PAD so that providers can easily locate information regarding an individual’s health care wishes in the event of a mental health crisis.